How to draft a marital separation agreement in China

Wednesday, 03 August 2011 03:37

A marital separation agreement, also known as a property settlement agreement, is a written contract dividing your property, spelling out your rights, and settling problems such as alimony and custody. A marital separation agreement may be drawn before or after you have filed for divorce - even while you and your spouse are still living together.

Generally, a separation agreement is the result of much discussion and negotiation surrounding divisions of assets and liabilities and any support, maintenance, custody or visitation issues. If you are going through a divorce or separation, the sample separation agreement below will help you to start thinking about and preparing for these discussions and negotiations. Your attorney may choose to use the sample agreement as a resource, but will want to draft an agreement specifically tailored to your situation.

Note that if you and your spouse agree on a resolution to all of the main issues in the sample separation agreement prior to meeting with your attorneys, you may pay less in attorney's fees. This might be a possibility in less complicated separations, such as those stemming from a short-term marriage with no children.

SEPARATION AGREEMENT

This Separation Agreement and Property Settlement between John Glenn Doe, of Durham County, North Carolina, hereinafter referred to as “Husband”, and Mary Jane Doe, of Wake County, North Carolina, hereinafter referred to as “Wife”, shall become effective as of the date that it has been executed by each party hereto;

W I T N E S S E T H:

THAT, WHEREAS, the parties hereto were married on December 25, 1990, and certain differences have arisen between them rendering it undesirable for them to continue to live together as Husband and Wife, by reason whereof they separated on April 15, 1997, and have agreed to live separate and apart permanently; and

WHEREAS, there were no children born of the marriage; and

WHEREAS, each of the parties is more than 18 years of age, and they desire to confirm their separation and to make arrangements in connection therewith, including the settlement and adjustment of their property rights and other rights, responsibilities, and obligations growing out of their marital relationship; and

WHEREAS, after mature consideration and judgment, each party having had the opportunity to seek independent legal counsel from an attorney of his or her respective choice, each party believes it is in his or her own respective best interests to enter into this Separation Agreement and Property Settlement and each party considers this Agreement to be fair, reasonable and equitable; and

WHEREAS, each party has read this Agreement, fully understands the terms, conditions and provisions hereof and deems such to be fair, just, and equitable;

NOW, THEREFORE, in consideration of the premises, the mutual promises and undertakings herein contained and for other good and valuable consideration, the receipt of which is hereby acknowledged, each party stipulates, agrees and covenants with the other as follows:

1. General. From and after the date of this Agreement, it shall be lawful for Husband and Wife to live separate and apart, each from the other, as fully, completely and in the same manner and to the same extent as though they had never been married.

2. Interference. Husband and Wife each shall be free from interference, restraint, authority and control, direct or indirect, by the other, as fully as if he or she were single and unmarried. Neither party hereto shall hereafter disturb, annoy, molest, harass or in any way interfere with the other, directly or indirectly, nor compel or endeavor to compel the other to cohabit or dwell with him or her.

3. Residence. Subject to the limitations set out herein with respect to the payment of alimony, Husband and Wife may reside at such place or places and reside or associate with such person or persons as each of them may deem fit or as each of them may desire.

4. Visitation. Neither Husband nor Wife shall call upon or visit the other except by express invitation by one accepted by the other.

5. Employment. Each of the parties may, for his or her separate benefit, engage in any employment, business or profession he or she may choose.

6. Right To Contract. Both Husband and Wife shall have the right to contract and to be fully contracted with, independently of the other, as fully and to all intents and purposes as if they had never been married.

7. Marital Residence. The parties are the owners of a house and lot located at 1000 Chimney Rock Road, Raleigh, North Carolina. Contemporaneously with the execution of this Agreement, Wife has by quitclaim deed conveyed her interest in said property to Husband subject to the existing note and deed of trust encumbering the property, the balance of which Husband assumes and agrees to pay. Husband shall indemnify and hold the Wife harmless therefrom.

8. Tangible Personal Property Located at Marital Residence. Until the date of separation of the parties, the aforementioned residence was occupied by the parties as their marital residence. On that date Wife departed the premises and has since resided elsewhere. At the time of Wife’s departure, she removed from the marital residence all of the tangible personal property she is to receive. Thus, all of the furniture, appliances and other articles of tangible personal property presently located in and around the marital residence shall be and become the sole and separate property of Husband. Wife hereby relinquishes any and all claims he may have in and to the same. All of the furniture, appliances and other articles of tangible personal property removed from the marital residence by Wife shall be and become the sole and separate property of Wife. Husband hereby relinquishes any and all claims she may have in and to the same.

9. Automobiles. The parties are the owners of the following automobiles:

A 1991 Ford Taurus automobile and a 1974 Ford Mustang which are titled to Husband’s name and driven by Husband. The title to these automobiles is unencumbered. Wife conveys all of her right, title and interest in and to the aforementioned automobiles to Husband so that the said automobiles shall be and become the sole and separate property of Husband. Henceforth, Husband shall be solely responsible for all maintenance, repairs and insurance premiums for said automobile, and shall render Wife harmless from and against all obligations, claims and expenses, including reasonable attorney’s fees, arising out of or relating to any of these obligations.

10. Intangible Personal Property. The parties have divided between themselves, to their mutual satisfaction, all intangible personal property owned by them individually and jointly, including but not limited to checking and savings accounts, stocks, bonds, mutual funds, IRA’s, interests in pension and profit sharing plans, promissory notes, franchises, partnerships and the like. Hereafter, neither party shall make any claim against the other for any intangible personal property in the name, possession or control of the other.

11. Future Debts. Neither party hereafter shall charge or cause to be charged to or against the other party any purchase which either party may; and neither Husband nor Wife shall create any engagements or obligations in the name of or against the other hereafter nor shall they secure or attempt to secure any credit upon or in connection with the other or in his or her name. Each party shall promptly pay all debts and discharge all financial obligations, to the best of his or her respective ability, which either may incur for himself or herself hereafter; and each shall hold the other free and harmless and shall indemnify and defend the other from any and all subsequent debts, obligations or liabilities which are incurred or sustained individually hereafter.

12. Debts. Husband agrees to promptly pay, when due, all debts incurred in his name alone and to indemnify and hold Wife harmless therefrom. Wife agrees to promptly pay, when due, all debts incurred in her name alone and to indemnify and hold Husband harmless therefrom.

13. Distributive Award. Husband shall pay to Wife a distributive award of $12,500 upon execution of this Agreement.

14. Health Insurance Continuation. The parties recognize that Wife may be eligible to continue coverage through COBRA under the group health insurance carried by Husband through his employer. Husband shall, within ten days of any event that would cause Wife’s health insurance coverage to end, either under the terms of the policy or by reason of a qualifying event under the COBRA requirements, notify the plan administrator of the event. At the same time, Husband shall inform Wife in writing that such notice has been given to the plan administrator.

15. Support Of Wife. Husband agrees to pay Wife as alimony for her sole use and benefit the sum of $600 per month in cash on or before the first (1st) day of each calendar month, commencing with April 1, 1997. Such payments shall continue until the first to occur of the following events: (i) the death of Wife, (ii) the remarriage of Wife, (iii) the death of Husband, (iv) cohabitation of Wife with an unrelated adult or (v) the 1st day of November 1, 2010. In no event and under no circumstances shall alimony payments extend beyond November 1, 2010 and shall finally conclude with the payment for the month of November, 2010, unless terminated sooner by Husband’s death, Wife’s death, or Wife’s remarriage (marriage being defined herein as a church or civil marriage ceremony following the issuance of a marriage license in the jurisdiction where performed), or cohabitation. The parties further agree that there is no liability to make any of the foregoing alimony payments for any period after the death of Wife and there is no liability to make any payment (in cash or property) as a substitute for such payments after the death of Wife. Any monthly payment that is not paid when due under this Agreement shall bear interest, from the due date until paid, at the rate of 9% per year. Wife accepts the payments specified in and to be made under this section in full satisfaction and settlement of all her right, claim and demand against Husband for support, maintenance and alimony. The provisions for the support, maintenance and alimony of Wife are independent of any division or agreement for division of property between the parties, and shall not for any purpose be deemed to be a part of or merged in or integrated with the property settlement of the parties.

16. Waiver Of Rights To Equitable Distribution And Other Rights In Marital Property. Husband and Wife expressly acknowledge and agree, pursuant to G.S. Section 50-20(d), that the division and distribution of marital property set forth herein is just, fair and reasonable, is deemed by the parties to be equitable and satisfactory, and that this Agreement shall be binding on the parties. Except as otherwise provided herein, Husband and Wife further acknowledge that the foregoing provisions for the division and distribution of property are made in full and complete satisfaction of any and all claims specified hereinbelow. Each party expressly waives any and all claims, whether now in existence or acquired hereafter, which either party may have against the other party or the property of the other party under the present and future laws of this or any other jurisdiction relating to the distribution of marital property, including, but not limited to, rights to division of real and personal property, payment of capital sums or periodic payments, distributive shares, pension or retirement benefits, life insurance and every other form of property, real or personal, tangible or intangible, vested or contingent. Each party accepts the provisions of this Agreement in lieu of and in full and final settlement and satisfaction of any and all claims and rights which either party may now or hereafter have against the other party for the distribution of property; and the parties agree that this provision and this Agreement may be pleaded in bar of any such claim for relief in any suit filed hereafter.

17. Mutual Release Of Property Rights. Husband and Wife grant, release, and forever quitclaim each to the other, all right, title, interest, claim and demand whatsoever in the real estate of which either is now seized or may hereafter become seized; and each of said parties may from this date and at all times hereafter purchase, acquire, own, hold, possess, encumber, transfer, dispose of and convey any and all classes and kinds of property, real or personal, tangible or intangible, or mixed, as though unmarried and free from the consent, joinder and interference of the other party, it being the understanding and agreement on the part of each of the parties hereto that in the sale, transfer and conveyance of any property hereafter it shall not be necessary in order for the grantee to have a good title, that the other party hereto shall sign and execute to the grantee the deed, conveyance, deed of trust, mortgage or bill of sale conveying or selling the property; it being the agreement and covenant of the parties hereto that in this respect, each of the parties hereto has forever released and discharged, and by these presents each does hereby now forever release and discharge the property of the other from all claims, interest and estate of his or her part, and that each shall be in the same position as if such party were single and unmarried.

18. Sale Of Property. In the event of a sale, transfer, or conveyance of any real or personal property now owned or hereafter acquired by either of the parties, if (notwithstanding the mutual releases contained in this Agreement) either party to this Agreement is called upon to execute a deed, conveyance, bill of sale or other instrument conveying said property, then the party called upon will sign any such instrument which may be reasonably required or reasonably necessary to perfect title in the grantee of the property which is sought to be conveyed.

19. Waivers Of Claims Against Estate. Except as otherwise expressly provided for in this Agreement, Husband does hereby waive, release, discharge, quitclaim and renounce unto the Wife and her heirs and assigns, and Wife does hereby waive, release, discharge, quitclaim and renounce unto Husband and his heirs and assigns:

All and every right to a share in the estate of the other party upon said party’s death as provided in G.S. Section 29-14, or otherwise, now and hereafter by law provided;

All and every right to elect to take a life estate in real estate upon the death of the other party in lieu of the share provided in G.S. Section 29-14, as provided in G.S. Section 29-30, or otherwise, now and hereafter by law provided;

All and every right to a year’s allowance upon the death of the other party as provided by G.S. Section 30-15, or otherwise, now and hereafter by law provided;

All and every right to dissent as provided by G.S. Section 30-1, or otherwise, now and hereafter by law provided; and

All and every right to administer upon the estate of the other party as provided by G.S. Section 28A-4-1, or otherwise, now and hereafter by law provided.

20. Mutual Release. Subject to the rights and privileges provided for in this Agreement and in any deed or other instrument executed contemporaneously or in connection herewith, each party does hereby release and discharge the other of and from all causes of action, claims, rights or demands whatsoever, at law or in equity, which either of the parties ever had or now has against the other, known or unknown, by reason of any matter, cause or thing up to the date of the execution of this Agreement, except the cause of action for divorce based upon the separation of the parties. It is the intention of the parties that henceforth there shall be, as between them, only such rights and obligations as are specifically provided for in this Agreement, the right of action for divorce, and such rights and obligations as are specifically provided for in any deed or other instrument executed contemporaneously or in connection herewith, provided, however, that the releases in this Agreement shall not apply to rights to any social security benefits the parties may have by reason of their marriage to each other.

21. Waivers Of Rights, Claims, Or Benefits Relating To Wills, Trusts, Death Benefits, And Insurance Proceeds For Property Damage. Husband and Wife expressly waive any right, claim or benefit (including an appointment as personal representative, a bequest or devise) under any Will executed by the other party prior to the date of this Agreement. Each party further waives, releases, and renounces, and hereby conveys, quitclaims and assigns over to the other party and his or her heirs, executors and administrators, any beneficial or administrative right arising under any trust created by the other party prior to the date of this Agreement, any right to insurance proceeds or employment benefits payable by reason of the death, disability or retirement of the other party except as set forth herein, and any right to insurance proceeds payable by reason of damage or destruction to any real or personal property owned separately by the other party, whether such property was distributed under this Agreement or acquired before or after the execution of this Agreement by the other party. Husband and Wife further agree upon the death of the other to execute such other and further documents including documents of renunciation as may be reasonably required to give full force and effect to this agreement.

22. Effect Of Reconciliation. In the event of the reconciliation of the parties hereto, the distribution of property under this Agreement shall remain in force, whether or not such provisions are executed or executory; and the property distributed under this Agreement shall not thereafter be subject to the provisions of the North Carolina Equitable Distribution of Marital Property Act. In the event any transfer of property to be made under this Agreement has not been completed prior to any reconciliation, the transferor is not relieved of his or her obligation to effectuate such transfer. Likewise, all obligations for the payment of debts provided for herein shall remain in effect.

23. Transfers Of Property Incident To Divorce. The parties agree (i) that the transfer of property hereunder is related to the divorce; (ii) that the transfer of property hereunder is a transfer incident to divorce and is related to the cessation of the marriage; (iii) that the intent and purpose of this Agreement is for the transfer of property hereunder to be tax free pursuant to Section 1041 of the Internal Revenue Code and the applicable provisions of North Carolina law and for no gain or loss to be recognized by either party as a result of such transfer; and (iv) that they will file a formal election if necessary or otherwise take such actions as may be required by applicable provisions of the state or federal income tax law and regulations to give full force and effect to their aforesaid intent and purpose.

24. Subsequent Divorce; No Incorporation; Confidentiality. Nothing herein contained shall be deemed to prevent either of the parties from maintaining a suit for absolute divorce against the other based on the ground of separation as provided by law; however, the rights and obligations hereunder shall survive any such divorce, regardless of who obtains or petitions for said divorce. The parties further agree that this Agreement will not be incorporated, by reference or otherwise, in any final judgment of divorce, that this Agreement and the terms hereof will not be made generally known to the public, and that this Agreement will not be recorded in the Public Registry of Wake County or in the Public Registry of any other county in this State.

25. Construction. This Agreement is not an agreement between the parties to obtain a divorce. The same is an agreement settling their property and marital rights.

26. Additional Instruments. Each of the parties shall from time to time, at the request of the other, execute, acknowledge, and deliver to the other party, any further instrument that may be reasonably required to give full force and effect to the provisions of this Agreement.

27. Memorandum Of Agreement. In order to protect the privacy of each party, they agree to execute a Memorandum of Separation Agreement which shall be recorded in lieu of the full text of this Agreement in the event such recording is needed by either party.

28. Amendment. This Agreement can be altered and amended only by further written agreement duly executed by the parties. Any failure by either party to specifically perform or to enforce performance exactly according to the letter of this Agreement shall not constitute an alteration of the same by way of enlargement, waiver, reduction, estoppel, or otherwise, unless confirmed in writing by the parties. It is understood that the parties may, by mutual agreement, make temporary modifications from time to time as conditions require, but this Agreement shall nonetheless be binding upon the parties as written, except in the event of a material breach.

29. Situs. This Agreement, and the rights and duties of the parties hereunder, shall be construed in accordance with, and governed by, the laws of the State of North Carolina.

30. Binding Effect. Except as otherwise stated herein, all the provisions of this Agreement shall be binding upon the respective heirs, estates, next of kin, executors, administrators, and assigns of the parties.

31. Entire Agreement. This Agreement, together with any exhibits and schedules attached hereto, contains the entire understanding of the parties with respect to the subject matter; and there are no representations, warranties, covenants or undertakings other than those expressly set forth herein. This Agreement supersedes and replaces all prior agreements and understandings of the parties.

32. Voluntary Act. Each of the parties acknowledge that he or she has read this Agreement and understands its contents and provisions; that it is a fair and reasonable agreement to each of them, having due regard to the conditions and circumstances of the parties hereto on the date hereof; that each has signed and executed the Agreement freely and voluntarily and without fear, compulsion, duress, coercion, persuasion or undue influence exercised by either party upon the other or by any other person or persons upon either.

33. Representation By Counsel. Wife has been represented by independent counsel of her own choice, Lee S. Rosen, and Husband has been represented by independent counsel of his own choice, Lisa M. Angel. Both parties have been fully advised of their rights and obligations arising from their marital relationship, have asked questions of their respective counsel and have received answers to said questions which are fully satisfactory to them. Each party has accepted, and is fully satisfied with, the legal services, counsel and advice rendered to each party by his or her attorney. Each party understands that the agreements and obligations assumed by the other are assumed with the express understanding and agreement that they are in full satisfaction of all rights which each of them now has or might hereafter or otherwise have in the property or estate of the other and in full satisfaction of all obligations which each of them now has or might hereafter or otherwise have toward the other. The parties acknowledge that both the legal and practical effects of this Agreement have been fully explained to them by their respective counsel.

34. Specific Performance. Either party shall have the right to compel the performance of the provisions of this Agreement by suing for specific performance in the courts where jurisdiction of the parties and subject matter exists. Both parties acknowledge that neither party has a plain, speedy or adequate legal remedy to compel compliance with the provisions of this Agreement, that neither party shall be required to repeatedly file suit for any breach of this Agreement, that this Agreement is fair and equitable to both parties and that an order of specific performance enforceable by contempt is an appropriate remedy for a breach by either party.

35. Rescission. No action to rescind this Agreement shall be brought until the party making such rescission request has first returned, or offered to return, all benefits received hereunder.

36. Terms. The terms “Husband” and “Wife” used herein shall refer to the parties herein whether they remain married or become unmarried.

IN WITNESS WHEREOF, the parties have signed, sealed and acknowledged this Agreement in duplicate originals, one of which is retained by each of the parties.

This the ____________ day of __________________, 1998.

_______________________________________(SEAL)

Mary Jane Doe

This the ____________ day of __________________, 1998.

_______________________________________(SEAL)

John Glenn Doe

STATE OF NORTH CAROLINA

COUNTY OF WAKE

I, ______________________________________________, a Notary Public in and for said County and State, do hereby certify that Mary Jane Doe, of Wake County personally appeared before me this day, and acknowledged the due execution of the foregoing Separation Agreement and Property Settlement; that the said Mary Jane Doe stated that she signed the same freely and voluntarily, without fear or compulsion of her spouse or any other person; and that she voluntarily assents thereto.

Witness my hand and seal this ______ day of ___________, 1998.

_____________________________________________

Notary Public

My Commission Expires:_______________________

STATE OF NORTH CAROLINA

COUNTY OF WAKE

I, ______________________________________________, a Notary Public in and for said County and State, do hereby certify that John Glenn Doe personally appeared before me this day, and acknowledged the due execution of the foregoing Separation Agreement and Property Settlement; that the said John Glenn Doe stated that he signed the same freely and voluntarily, without fear or compulsion of his spouse or any other person; and that he voluntarily assents thereto.

Witness my hand and seal this ______ day of ___________, 1998.

_____________________________________________

Notary Public

My Commission Expires:_____________________

If you have no marital property, no joint debts, and no children, you probably don't need a marital separation agreement to get a no-fault divorce. However, if you want to provide for the future governance of your relationship, as well as provide additional evidence to the court about the day that you separated, you should have a Marital Separation Agreement. An agreement leaves no doubt about the details of the ending of your marriage relationship. It is better to have a clearly written agreement, rather than rely on verbal understandings.

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